By specifying what actions an alleged offender must not engage in, protection orders prevent domestic violence and any kind of harassment from taking place again. If you breach the protection order, you may be arrested by the police immediately.
Protection orders are enforceable across the country once they are granted.
If it becomes permanent, then so does the open warrant. That means, until the order is lifted, if you violate it, or even if you are accused of violating it, you can be arrested and detained. You will then be prosecuted criminally by the State for the breach of the protection order.
Obtain a protection order.
Manipulation.
This application can be made at any Magistrate’s Court having jurisdiction over the area:
Once the application has been completed, the Clerk of the Court will submit the application papers to a relevant Magistrate for consideration.
The Magistrate must, in considering the application, be satisfied of the following:
If the Magistrate is satisfied that the requirements have been met, he/she will grant an interim protection order against the Respondent. Where the court is not satisfied, for whatever reason, the court will notify the Complainant and the Respondent to attend court on an allotted date for further enquiry into the matter.
Once the interim order has been granted, the Clerk of the Court will arrange for a copy of the application papers together with a copy of the interim protection order to be served by the Sheriff, or a member of the South African Police Services on the Respondent personally.
The Complainant is responsible for the costs of service unless, at the time of making the application, the Complainant shows to the court’s satisfaction that he /she cannot afford the costs of service.
An interim protection order is temporary in nature. Once granted, a return date will be set by the Magistrate and recorded on the interim protection order where the Respondent will be called to show the court why a final order should not be granted.
The interim protection order is of no force or effect until such time as the order has actually been served on the Respondent. Therefore, please ensure that it is served.
If it is violated a warrant of arrest can be issued against the Respondent.
Defense for protection order.
What is a protection order?
After the first court appearance, our client was able to get access to his child as we pointed out that the complainant was abusing the court process by lodging false claims of harassment for a protection order.
We believe that it is important for people to understand the legal ramifications of a protection order as it can lead to an immediate arrest. Thus, we are responsive to your needs and are available on demand.
A protection is very serious – you could go to prison if you breach the terms of the order. In fact, providing it is not a notice to show cause, it means the court has issued a suspended warrant of arrest for you. If you breach the protection order, you may be arrested by the police immediately.
In all likelihood the police officers serving you with the order would have explained it to you, but read the entire document carefully – where you may not go, and who you may not contact.
Do not go to where it says you should not, nor should you speak to whoever it excludes you from talking to. These places and people will be clearly named in the document you have received. If you are not sure, be safe and do not contact them until you have contacted your lawyer. If you don’t have a lawyer – hire one, and if you do not have the finances – contact legal aid. If you choose to continue without legal representation, you run the risk of the order being made permanent
The order will have a date for you to appear in court. The police officers who served the order would have informed you of that date. Do not miss that date as it means that the order against you may become permanent, as the Court could deem your non-attendance as you disrespecting the court and disregarding the seriousness of its processes.
You are of course within your rights not to oppose the order, but generally most respondents choose to oppose it.
Opposing the order is a process that begins with the drafting of a answering affidavit, one in which you respond to the allegations made against you by the applicant. Again, we strongly recommend you hiring legal council to do this, especially given the potential severity of the repercussions.
When looking to draft your answering affidavit, look carefully at each allegation made against you and address them individually. Try to gather evidence that will exonerate you, put the events in context, or other wise mitigate what has been alleged. Where possible provide objective evidence, that is, documents that support or challenge a particular allegation. An example would be using your Google maps history to prove your location at a certain date or time.
You can also supply sworn statements from eye-witnesses to support your defense – but if the matter progresses to trial, these witnesses may be called to testify in court.
Avoid hearsay evidence – which is evidence from people who were not actually party to the events in question.
Each piece of evidence you refer to in your answering affidavit should be documented and attached as an annexure, and properly referenced – therefore it is important to have a professional assist you in the drafting and submission of these documents.
On the court date, you or your lawyer will be given a chance to present the answering affidavit and your supporting evidence to the complainant and the court. This will occur at the court stipulated in the original order.
The presiding magistrate will then give the applicant the opportunity to supply a replying affidavit, in which they will respond to the answering affidavit. They can also elaborate on the accusations they made against you, and supply supplementary arguments why the order should be made permanent. Usually the magistrate will allow 2 to 3 weeks for this, and so will set an appropriate date for all parties to return for the “Pre-Trial”. During this time you are required to still adhere to the order.
It is important to note that in some extreme instances, it is possible to have the appearance date moved sooner. These circumstances could be where access to a child has been denied, or where the respondent has been forced to get accommodation due to the restrictions in the order, or when there is sufficient urgent cause. In such cases, the answering affidavit should be drafted immediately, a new earlier court date sought from the clerk of the court, and then all parties served. Your lawyer will be able to provide more insight into the exact process.
On the day of the “Pre-Trial”, the magistrate will evaluate the evidence brought before the court to understand the common cause facts, the issues in dispute, the number of witnesses, the number of expert witnesses and so forth. Based on this, the magistrate will decide if it is necessary to hear oral evidence that is, have witnesses testify and be cross examined in court, or if the magistrate is satisfied with the evidence already presented.
If Oral arguments are required, then a new court date will be set, witnesses subpoenaed, and testimony given – what we commonly think of when imagining the court process in action. Once that is complete, the magistrate will then adjourn to consider the matter, and reserve judgement.
If it was not necessary to conduct oral evidence, then that step will be forgone, and the magistrate will adjourn the matter for argument. This means that the parties and or their respective representatives will argue their case on the basis of the affidavits which were submitted. For the Applicant, their argument will be about why the protection order should be made permanent or final. For the Respondent, their argument will be why the application for a protection order should be set aside.
The magistrate, having weighed the evidence, will then draft a ruling, and send it to all parties. If your application was unsuccessful, the order will be made permanent, or to the discretion of the magistrate. If successful, the order will be removed, and the open warrant against you, cancelled.
If you miss the deadline to refer your matter to the CCMA, you can still request condonation, which is essentially permission to submit your claim
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